Former President Donald Trump has made his much-ballyhooed announcement on where he’ll stand on a nationwide abortion law should he retake the White House. Will he support the 15-week ban, as he hinted a couple of weeks ago? No. How about a total ban? Nope. Well, a federal law protecting abortion access then? Absolutely not.
Pro-Life, Anti-Trump?
The former president, after teasing out the announcement and dropping hints pointing in different directions, finally announced Monday morning (April 8) that he thinks the issue should be left to the individual states. Abortion rights advocates don’t believe him – and they want abortion access protected by federal law anyway. Groups like Susan B. Anthony Pro-Life America and some Republican lawmakers like Sen. Lindsey Graham (R-SC) want abortion banned. Somehow, Trump managed to take a stance that upset both sides of the issue – but perhaps that shouldn’t be surprising, given who he is.
“We are deeply disappointed in President Trump’s position,” said Marjorie Dannenfelser, president of Susan B. Anthony Pro-Life America, in the group’s reaction statement. “Unborn children and their mothers deserve national protections and national advocacy from the brutality of the abortion industry. The Dobbs decision clearly allows both states and Congress to act. Saying the issue is ‘back to the states’ cedes the national debate to the Democrats, who are working relentlessly to enact legislation mandating abortion throughout all nine months of pregnancy,” she said. “If successful, they will wipe out states’ rights.”
As Liberty Nation explained not long ago, however, there are only three paths to a federal abortion rule, be that protection or ban. First, a law passed by Congress that is either then signed by the president, allowed to become law through presidential inaction, or, barring that, can pass a second time – by a two-thirds majority – to overcome a presidential veto.
The second way would be an amendment to the US Constitution – which requires far more than just a federal law. Finally, the US Supreme Court could rule that the Constitution supports either a ban or a protection. That happened in a very roundabout way in 1973 with Roe v. Wade, which was immediately challenged and protested as a terrible ruling – even by some law experts who believe abortion should be legal.
It took 184 years to get to that ruling – and then another 50 to overturn it. So, sure, maybe the odds of the Supreme Court reversing course again are slightly stronger than those of Congress acting or the Constitution changing – but they still aren’t good.
Sen. Graham chimed in as well, saying that the “pro-life movement has always been about the well-being of the unborn child – not geography.” The gentleman from South Carolina has authored national abortion ban legislation before, and he says he will do so again.
Yes, some Republican lawmakers will propose abortion restrictions from varying points in the pregnancy – just as Democrats will inevitably introduce legislation to establish and protect a woman’s right to termination. But, again, few of those ever pass even the House by simple majority, and none have ever crossed that 60-vote threshold required in the Senate, nor are they likely to. And even if one someday does, should the president reject the bill, it will take two-thirds of both chambers to override that veto.
Abortion and the Constitution
Here’s the real question, though: Is Trump wrong? Not according to the Constitution. While the exact wording of the Dobbs v. Jackson Women’s Health ruling could be interpreted to allow the US Congress to pass a ban, the spirit of the argument against Roe was that the Constitution doesn’t protect abortion either explicitly or implicitly, and so the federal government should never have gotten involved.
That argument is in line with the Founders’ ideas of how the government should work, as well as a simple reading of the Constitution itself. Article I, Section 8 lays out the powers (and duties) of the US Congress. It’s a wordy list, but it boils down to the following: print and borrow money, regulate commerce with other nations and between the states, establish post offices and postal roads, grant patents, prosecute piracy and other felonies on the seas, declare war, raise an army and maintain a navy for the protection of the states and regulate said military, intercede in disputes between states, regulate naturalization and bankruptcies, and to levy taxes and make such laws as needed to do the things specifically allowed by the Constitution.
The Tenth Amendment then goes on to explicitly grant to the states themselves, or the people, any power not given to the federal government or withheld from the states by the Constitution:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The federal government was never intended to hold the authority to regulate individual behavior. That’s the states’ job. Could Congress pass a law banning abortion? Sure – or lawmakers could pass a law protecting it. But that wouldn’t make it any more constitutional or any more in line with the Founders’ intent than any other federal law that violates the authority of the individual states by regulating personal behavior. The pro-choice folks might be upset with Trump. Some of the pro-life folks might be upset with Trump. But – in this case, at least – it seems the Founders would be quite pleased.
